Posted
by
Unknown Lamer
on Wednesday August 21, 2013 @11:10AM
from the cease-and-desist dept.

Despite being part of public court proceedings, Comcast sent a notice of infringement ordering Torrent Freak to stop hosting a letter linking a subscriber to Prenda Law. From the article: "Comcast has sent TorrentFreak a cease and desist letter, claiming copyright over contents of an article which revealed that Prenda Law was involved in operating a pirate honeypot. Failure to comply will result in a lawsuit in which the Internet provider will seek damages, a Comcast representative informs us. In addition, Comcast also alerted our hosting provider, who is now threatening to shut down our server."

There is no judge here. This is DMCA takedown notice. No judge needs to approve the take down letter in advance. It's basically a document sent to an ISP that says "I will sue you for enough money that you'll be forced to go out of business even if you win the case unless you remove our enemy Joe Blow from your network."

Fifteen years ago I started a Quake gaming site that I stuffed with all kinds of good contents, which included a huge trove of single player cheats, console commands and server commands that I meticulously tested and explained. Those pages may have been the most plagairized works on the internet; folks would take my content, remove my name, put theirs in, and repost.

My web host's IP address was used in one of the examples, and googling it brought up dozens of plagiarized pages. I'd email the sites and politely ask for simply credit and a link to my site. Very few complied and some were pretty damned hostile (most were at.edu domains so it was mostly college kids doing it, although a few were commercial).

Without takedowns there would have been nothing I could do about it. The same would apply to plagiarized GPL code someone posted and claimed credit for.

If someone posts my book on a commercial site I'll be issuing more (noncommercial use, including torrents, will be free). But bullshit like Comcast is pulling should result in someone's incarceration.

Yes, we need both. But we also need DMCA takedowns that make sense (this one did not since it lacked detail), and we also need DMCA takedowns that are not abused. Add to that, we need DMCA takedowns that can be verified (there must be a real person that can be immediately contacted about it).

If someone posts my book on a commercial site I'll be issuing more (noncommercial use, including torrents, will be free). But bullshit like Comcast is pulling should result in someone's incarceration.

So do we have your support in making a law that counter balances the highly abusable DMCA?

Yes, we need both. But we also need DMCA takedowns that make sense (this one did not since it lacked detail), and we also need DMCA takedowns that are not abused. Add to that, we need DMCA takedowns that can be verified (there must be a real person that can be immediately contacted about it).

So do we have your support in making a law that counter balances the highly abusable DMCA?

But, can you name any corporations that are actually willing to front the money to purchase such a revision to a law that is in their best interests to keep as is?

Anything I plagiarized like that I got permission from the content owners. I think I've been more upright with community creators like that vs dev houses and piracy. I'd pirate a game in a heart beat, but I'd make sure a community creator got credit.

Takedown laws do not exist so one of the unwashed masses (this means you ) can protect their content. They exist so big business can protect whatever the the intellectual property du jour is that they want to be protected.

I can assure you that nobody in the government or judicial system has any interest at all in protecting situations like your web content. Don't know how you missed the memo, but the laws are for the benefit of the rich and corporations. If you were one of those, you'd be protected.

Takedowns are one thing. But takedowns before you demonstrate genuine cause have pretty much proven themselves to do far more damage than good.

The OLD system we had, in which you had to show copyright violations before you could restrain someone else, worked BETTER than the current system. Granted, violations happened. But the abuse has gone so far in the other direction now that I think we can safely say that nearly everything about the DMCA is bad. It does offer some "safe harbors", but those safe harb

No, but explanations and other added value content is. Sounds like people were not just taking facts, but instead duplicating entire pages and just changing the name from the poster to their own. I can actually recall seeing a lot of this type of plagiarism years ago, someone would write a walkthrough or FAQ and it would quickly show up in a number of places with the author's name changed to someone who wanted a little status or traffic.

There's an entire industry now in auto-rippiing help-based discussion forums (particular cars, appliances, anything) and re-wrapping the threads as-is with your own layout wrapper and then using Google promotion tricks to get your page ahead of the real forum. The fake forums have no log in or response capability, but as most older product issues are archive stage anyway, i.e. thread with full solution, no more than a reference page is all that's needed.

That industry makes me miss the ability to, as part of any google link, immediately add sites to my blocklist. It used to be built right in to google's search page...

Heh, though one rather clever one that I keep hitting, if you try to interact with it, claims your IP address has been blocked by the admin and supplies an address you can message for further information. I have a feeling it just dumps you into a spam list for sale or something.

Heh, though one rather clever one that I keep hitting, if you try to interact with it, claims your IP address has been blocked by the admin and supplies an address you can message for further information. I have a feeling it just dumps you into a spam list for sale or something.

This is higly annoying. What happens more often than not when I google for a question about a game or computer fault is that the top 100 hits are all copies of the same discussion that gave the wrong answer.

We joke about having an internet test for the low-hanging fruit out there, yet this poster totally misconstrues and misinterprets the original post, pulls a claim out of his ass, and also calls the gp a douche.

The problem with ignoring a threat like this is that you really don't know what the outcome is, no matter how righteous you think you are in terms of actually following the law and believing that you have done absolutely nothing wrong.... even if you go so far as to contact lawyers and get an opinion from lawyers you have hired and they assert you have done nothing wrong. You are depending on the whims and fancies of judges or potentially even juries or at the very least an expensive legal proceeding that

Except that, if one reviews the linked article and comments, there does not seem to be a proper DMCA notice involved in this case.

Comcast only sent a cease & desist letter. If one were feeling particularly cynical, one might suggest that Comcast did so to avoid the usual and proper response to a bogus DMCA notice: a counternotice from TorrentFreak to their web host, which would protect the host from liability and allow them to leave the content up. Instead, the web host is left holding a bag of "what do I do with this thing?" and TorrentFreak is left hanging.

If you know of some magic wording that the laws says has to be spouted for it to be an "official" takedown, please enlighten us.

The six specific elements required of a takedown notice are enumerated in section 512(c)(3)(A) of Title 17 [copyright.gov]. There's a bit of explanatory commentary from Plagiarism Today [plagiarismtoday.com] that might help you to understand the relevant passages.

The cease & desist email quoted by TorrentFreak omits at least three of the required six elements - (ii), (iii), and (vi) - and element (v) is at best implied rather than explicitly stated.

Little do you realize the entire Prenda case is fiction, all written for entertainment purposes (c'mon, didn't you suspect?) and none of these things are really court documents. It's "Internet Porn" not in the sense of porn found on the Internet, but figurative porn, where the Internet is the subject (a la "food porn").

John Steele is just the name of the antagonist character (and in a recursive twist, he happens to be played by a brilliant comedic actor whose real name is "sharkmp4" and I, for one, find th

"Update 7pm CET: Comcast’s Senior Director Corporate Communications, Jenni Moyer, responded and said we can disregard the cease and desist as it “was sent in error.” The company further apologized for any confusion it may have caused."

They did later say the order was sent "in error". I have run that through my corporate lingo translator. What it means is " we sent the order in order to intimidate you and were surprised that there was some push back and now wish to back down to avoid even more bad publicity."

The thing is, all these companies rely on the situation where the ISP will instinctively pull a site down out of fear whenever a notice is received. Once the offending site is off the air then the company can say "oops" because they know the site will never come back up again. Copyright has absolutely zero relevance here, and DMCA as well has nothing whatsoever to do with copyright. This is purely 100% about intimidation. There is no legal system here, no judge to determine if it is appropriate or not, the law is left out of the loop. In fact the threat of actually having to pay to have the case heard in the legal system is what frightens the victims.

The mob goes around saying "it'd be a shame if something happened to your store" but at least they're locals, they have a face, and have colorful amusing nicknames. But corporations are faceless brick walls with no humor who threaten us from a distance.

Apparently all you have to do is claim you did it in good faith or there was a clerical error... presto, you're off the hook.

Maybe that's easier to believe when you have automation software scrubbing YouTube for possibly infringing material and you have tens of thousands of copyright works to protect. When you're a lawyer dealing with one very specific public court document, it seems to me like it might be harder to play off.

I wish I knew where the article was I'm sure I read it on/. but I remember a lady security researcher had zipped up some files from a trojan she was studying, uploaded them to her mega upload account and got a DMCA take down notice. At the time I remember thinking play along... Oh, it's yours? You wrote this? Ok, I'll take it down and give your response and info to the authorities.

If you read the actual message they sent TorrentFreak, the ISP isn't as bad as the summary makes them out to be. The ISP said that TF needs to take appropriate action and need to respond back with the action taken. No where did it specifically state that the action had to be removal of the scanned letter.

The ISP isn't in and doesn't want to be in a position where they are the legal department for all their customers trying to determine if each and every notice is legitimate especially in very specific incidents like this. They just want to know that you a. received the notice and b. have taken some action regarding it. That's all they are really concerned about and all they are required to do under the DMCA.

It would be appropriate and satisfy all parties if TF responded to the ISP stating that they contacted Comcast/Cyveillance, asserted their right to use the content under fair use/public domain/whatever, and that it would not be coming down. Appropriate action would be then taken.

It seems to me that the takedown notice recipient could respond to the notice by:

- Contacting Comcast telling them that they have received the notice.- Indicate to Comcast that the document is public, and that they would NOT be removing it.- Notify a third party web service that publicly keeps track of bogus takedown notices.

This last thing would be awesome to help prevent these in the future. If this public site publishes this information, and it gets back to the CEO, or Comcast's advertisers, it would

If they do that, then they must not charge the customer any more money. Many ISPs, however, have reacted to customers abandoning them due to invalid takedowns by charging them with the remainder of the contract, and sending that out to debt collectors. These are ISPs that need to be boycotted when they do things like this as a result of invalid takedowns.

Sue 'em for breach of agreement. Quite simple, really. Much like the horse boarding facility in Texas found out- you breach the agreement on YOUR end, you can't expect anything from the other party in return.

Filings with the court are not subject to copyright. What about exhibits? I think they can be still subject to copyright. Think about it. Suppose exhibits to court cases were not subject to copyright. Suppose I copy your book. You decide to sue me for copyright. The book I copied will necessarily be an exhibit in the case. Exhibits in cases are not subject to copyright, so now by suing for copyright infringement you've put your book in the public domain.

If anything good is coming out of all this NSA-spying, DMCA-takedown, RIAA-"Yo Momma" madness, it's that ordinary geeks in the United States are finally realizing just how desperately -- DESPERATELY -- this country needs loser-pay legislation. (Or maybe even a Constitutional Amendment, just to keep the courts from watering it down.)

The entire legal landscape in this country would be completely and totally different. Totally. Completely. Many

"Loser pays" is the rule in the UK and a number of other places. It is by no means the rule in the US, unless the court rejects the charges "with prejudice", thus allowing the cleared defendant to launch a separate legal action to recover their legal costs (success is not guaranteed).

It's also true that if you issue a DMCA takedown request in "good faith belief" that it's at the behest of the copyright owner, then no penalties apply. And if you are a lawyer (or clerk?) you are allowed to have a good faith belief in you client (employer?) even if he has often misrepresented his ownership previously. And the person requesting the issuance of the DMCA takedown notice has NO penalty, even if it can be shown to be malicious.

This just joins the long list of who cares copyright infringement notices that all major companies seem to think is necessary. I sure hope some CEOs and/or legal departments grow up soon, because I've had enough of everyone suing everyone over such insignificant crap. Especially when the reasoning is nill.

This is a public court filing. The word is already out, there is nothing to leak, and they have every right as a journalist reporting on a court case to show and describe the public filings made in that case. Fair use is pretty clear about that. This notice should have never been sent in the first place, and the lawyers at Comcast or their contractor need to be called out and made an example of for sending a false DMCA notice. People who are not even attorneys (like myself) can see that this is fair use

Um, Comcast, you messed up here and I suggest you "do the right thing" and admit it But I don't expect them to own up to the mistake anytime soon.

That leaves the question, what should the offended party do? Go to the public? (Done) Get it posted on SlashDot? (yep) File suit for the good of the next little fish who gets caught in Comcast's copyright protection folks? (Maybe)

If you have control over a given piece of intellectual property and deliberately place it into the public domain than you have for all intents and purposes turned that property over to the public domain. Remember this wasn't a honeypot run by law enforcement for purposes of trapping lawbreakers, this was done by the company for the purposes of creating lawbreakers in order to find people that they could sue.

This notion is not entirely without precedent, failing to protect intellectual property from use by t

I'd agree that they drastically hurt their case by running the honeypot, but I'd take issue with calling putting stuff online "placing it in the public domain." There seems to be a mistaken notion that a lot of people have that things on the Internet are automatically public domain for anyone to use in anyway they like. This is completely false. You can't just use Google Images, find a photo you like, and place it in an ad campaign/blog post/whatever. You can't just take some text that someone wrote and

Someone needs to explain to Comcast the following words, "Public court records". This means that anyone who wants can read those documents and cover them in news. Comcast can not claim copyright over something they do not own copyright of, as is the case here.

There treath is a bullshit and it needs to be explained to Comcast in clear words. They clearly do not understand anything else.

May be OT, but the headline of the TorrentFreak post is awful. Just tried to post it to G+ and my post reads "Comcast threatens to sue TorrentFreak for Copyright Infringement", which totally does not capture the problem./. headline is much better.

The ISP threat contains the wording "PLEASE NOTIFY US WITHIN 24 HOURS WITH TAKEN ACTIONS". They did NOT say what actions need to be taken, other than to notify them. So notify them of exactly what actions were taken. Say "We have removed each piece of content listed in the referenced complaint. Since there were no items listed in the referenced complaint (see the referenced complaint yourself and you will see there there are none), there were no items removed and we have asked the complainant to provide us with the list. We will provide you with a copy of that list when we receive it. If you receive the list before we do, please send a copy of it to us as quickly as possible so we may act on it. For now, our actions are therefore complete.".

Rule of law in the U.S. is dead, it just hasn't stopped moving yet. And when it does act, often it is against the interests of the the public and the country as a whole. The cause of America's legal abomination is the same as many of the country's other ills: massive corporations.

I would absolutely love to see this go to court. Please, oh please let this go to court. Let Comcast seek damages for your posting of public court documents.

Never going to happen. These clowns (Comcast's lawyers), as soon as they saw the website was contesting it, realised that this particular line of bullshit litigation would be shot down in flames immediately by the first judge who saw it. Its one thing being creative with interpreting laws relating to technology and explaining it to old men with no idea what you're talking about, quite another trying to do the same with legal procedure to a guy who both knows damn well how the law works, and has the power to slap you down if he thinks you're trying to step on his toes.

This shit isn't worthy of the label "news" or "current events" or even "docu-romcom-tainment-dramedy".

Hi, Daniel Lawrence Whitney, [wikipedia.org] is Comcast a nice place to work? This story IS worthy and if you didn't want it posted you should have voted against it in the firehose rather than bitching about its posting. If you did vote against it, YOU LOSE.

Sorry, but we don''t *know* it wasn't an accident. We suspect that it wasn't. It may be a very strong suspicion, but that's not proof. A public appology would be a strong case that they regretted the action, but I can't think of anything that would count as proof that it was an accident.

OTOH, I don't even expect a public appology. And THAT'S not proof that it was intentional. Proof that it was intentional would require something like a note from a manager to the legal department, which isn't to be expected even if it happened.

At the moment you can reasonably decide either to believe them, or to consider them bare-fced liars (or both). The evidence isn't conclusive.

It was too specific to be an accident... unless lawyers treat "I am dumb and do not deserve my JD degree" as "accidents". Lawyers pull this shit ALL THE TIME with the intentions of scaring or scamming people. If they are saying it was an accident, then they are pulling their pants back up in a hurry.